State Line Mercantile Co. v. Goodwin
| Decision Date | 05 March 1923 |
| Docket Number | 22932 |
| Citation | 131 Miss. 274,95 So. 436 |
| Court | Mississippi Supreme Court |
| Parties | STATE LINE MERCANTILE CO. v. GOODWIN |
APPEAL AND ERROR. Justices of the peace. Where special deputy makes return on process in attachment suit, justice cannot proceed with trial, unless defendant appears; error to grant peremptory instruction on merits of case on appeal from justice court, but, where erroneous, should be reversed and remanded.
Where an attachment was sued out before a justice of the peace, and the justice of the peace appointed a private person as special deputy under section 2732, Code of 1906 (Hemingway's Code, section 2231), and such special deputy makes a return on the process, instead of turning the same over to the regular constable or the sheriff, as required by section 2733, Code of 1906 (Hemingway's Code, section 2232), the justice cannot proceed with the trial unless the defendant appears or enters an appearance. But if the justice enters judgment against the defendant and dismisses a claimant's issue and the claimant appeals, it will be error on appeal to grant a peremptory instruction on the merits of the trial between plaintiff and claimant, on the ground that the action of the special deputy was illegal, but in such case the judgment should be reversed, and the cause remanded to the justice, for further proceedings according to law, the justice having acquired jurisdiction by the filing of the affidavit and bond for attachment.
Appeal from circuit court of Wayne county, HON. J. D. FATHEREE Judge.
Action by Mrs. Annie Goodwin against the State Line Mercantile Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Judgment reversed, and cause remanded.
E. W. Breeland, for appellant.
Counsel for appellee is in error in his contention that the lower court sustained his motion, on behalf of claimant there, to quash the attachment writ. The record does not so disclose. The record does, however, disclose, that the court sustained his motion for a peremptory instruction, and did give the jury such instruction and the case went out upon said peremptory instruction, and that too before the appellant here, plaintiff there, had completed his testimony. The authorities cited by counsel for appellee are not in point here as each and all of them deal entirely with the matter of attachment secured before a justice of the peace, but necessarily returnable to the circuit court and are governed and controlled by the provisions of section 134, Hemingway's code, section 142, Code of 1906. The reason for the court's holding in these cases is perfectly manifest. Of course, a constable has no authority to make returns on process returnable to the circuit court, and that is exactly what happened in each of the cases cited by my learned friend Mr. Heidelberg, to-wit: Tucker v. Byers, 46 Miss. 549; Barnett v. Ring, 55, Miss. 97; Murphy v. Orgill, 23 So. 305. These cases can have no bearing on the case at bar, where it is complained of "a special constable" appointed by a justice of the peace under section 2231, Hemingway's Code, to execute process made returnable to his own court. That there is always an underlying reason for the provisions of section 2232, Hemingway's Code is obvious, when the whole section is read and considered. The party "from whom the property was taken" must have notice so that he may interpose his defense or enter his appearance. Notice to all parties interested is necessary, and here the record plainly shows that all parties of interest were in the court, the defendant, claimant and all, and why now complain; and especially can the claimant carry the matter of the judgment of the lower court to the circuit court on appeal, and there for the first time complain that the justice of peace court was without jurisdiction? I think not. Jurisdiction of persons is obtained in either of two ways: By service of proper process or by voluntary appearance in the court. The record here clearly discloses the appearance and presence of both the defendant and the claimant in the justice court at the term the judgment was rendered. All judgments are valid whenever there is proper service of process, appearance or waiver of service.
Here, we have both service of process and appearance of both defendant and claimant. Appearance in any manner, is a waiver of service. See Standard Oil Co. v. State, 107 Miss. 377. Appearance on constructive notice is a waiver of any further service. Wainwright v. Atkins, 104 Miss. 438. Our court has ever held that all the pleadings in a justice of peace court should be treated with great liberality and that the substance and not the form of the cause is to be considered and sought to be reached. Town v. Lipkin, and Son, 114 Miss. 693.
Should no process have been served by anybody but the property in question here taken into the court and the same manner of appearance and litigation of the parties had as was had in the justice of peace court in this matter, then the judgment would be valid and binding and the parties estopped from complaining as the appellee does here.
M. L. Heidelberg, for appellee.
This cause originated in the court of H. L. Daily, a justice of the peace, by the appellant suing out a writ of attachment against Wm. Dunn. See page 4 of the record. This writ was placed in the hands of Howard Norman, special deputy, who executed the same, and made his return direct to the court. See page 5 of the record. On the day set for the trial the claimant--appellee here--filed her claimant's affidavit. At the trial of the plaintiff, the State Line Mercantile Company, appellant here, made a motion to dismiss claimant's affidavit for the reason it had not copied the form laid down in the Code for such affidavits. The court sustained the motion. Judgment was then rendered by the court in favor of the plaintiff, The State Line Mercantile Co., both on the attachment issue and the debt issue. The claimant being out of court took an appeal to the circuit court, where the cause was tried anew. The plaintiff placed his case before the jury, and rested. The claimant, Mrs. Annie Goodwin, then made a motion to dismiss the cause because the papers show on their face that the attachment writ sued out by the plaintiff, The State Line Mercantile Co., is void. The court sustained the motion and gave judgment for the claimant. From this judgment the plaintiff appealed to the supreme court.
The motion by the claimant, appellee here, is based on the return made by the special constable, Howard Norman, who was without authority to make the return at all. See section 2232 of Hemingway's Code, section 2733, Code of 1906. The circuit court had only such jurisdiction as the justice of the peace had, and he had none, because a special deputy has no authority to make return on the attachment writ, as was done in this case. The court being without jurisdiction, could enter no valid judgment on the attachment issue. See Tucker v. Byars, 46 Miss. 549; Barnett v. Ring, 55 Miss. 97; Murphy v. Orgill, 23 So. 305. The cases are annotated under section 134 of Hemingway's Code where a similar requirement is made as to constables and others who execute attachment writs for the circuit court.
It will also be noted that the justice of the peace without authority of law had the mule sold under writ of execution and that the plaintiff, the appellant here, bought the mule at such sale. If the record is not completed as outlined above we desire to have the same corrected.
The appellant sued out an attachment proceeding against Will Dunn in favor of the appellant, and a mule was seized under the attachment. The affidavit and bond being filed, a writ of attachment was issued, and a special deputy appointed by the justice of the peace under section 2732, Code of 1906 (Hemingway's Code, section 2231), the appointment reading as follows:
The special constable or deputy made upon the writ the following return:
The appellee filed a claimant's affidavit in the justice court, claiming a lien upon the mule seized for one hundred ten dollars and eight per cent. interest from November 18, 1920, and ten per cent. attorneys' fees called for in said note executed by Dunn to the claimant, and attached to claimant's affidavit a copy of her deed of trust, which did not show that it had been recorded in the records of the county prior to the seizure under the attachment writ. When the cause came on for trial before the justice of the peace the following judgment was entered in the case between the appellant and William Dunn:
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